All posts tagged ‘licensing’

All images from Theft! A History of Music courtesy of Jennifer Jenkins, James Boyle, and Keith Aoki

[Read part 1 of this series about the upcoming graphic novel Theft! A History of Music and the history it reviews and part 2, which discusses how copyright entered the picture.]

Imagine a 20-year-old musician publishing his work today. Let’s pretend he’s living the fast and reckless life of a rock star and will die young at 45. Because the copyright term has been ratcheted up to life of the author plus 70 years (or 95 years from publication for corporate works), you won’t be able to sample his work without permission (for your heartfelt tribute song, of course), until 2105. But since you’re not living his rock star lifestyle, maybe you can hang on another 95 years to grab your chance.

“We are the first generation in history to deny our culture to ourselves,” Jennifer Jenkins said.

Furthermore, as the new year approaches, we’ll soon again “celebrate” Public Domain Day, January 1, which is the day when works entering the public domain in a given year do so. But as I explained for this year’s non-celebration, because of copyright changes and extensions, there will be no previously copyrighted works entering the public domain in the US until 2019.

Under the law as it stood until 1978, most music would go into the public domain in 28 years, which would put works from the 80s into the public domain now. But the new terms have been retrospectively applied, sometimes applying to dead musicians, who presumably have other things to worry about besides their copyrights.

Copyright law has a built-in, careful balance between control and freedom. And we haven’t just added a few marbles to one side of the scale—we’ve dropped an anvil on it. Outside of a conscious choice to release work to the public domain or to use a tool like Creative Commons, nothing you or any of your contemporaries creates will be available for building on, which was not the case for the works of Brahms or Beethoven, or many of the giants of jazz, blues, or rock ‘n roll.

The real tragedy is that we’re unlike the classical composers and rock ‘n roll pioneers in another way. We have the Internet. Remixing software. Sharing tools. The technologies we have now offer anyone unprecedented opportunities for creating and sharing music. We live in a time that has the potential to be the most creative period in history. But the law is constraining that possibility by making those activities illegal.

“The gap between what technology is enabling and what the law is disabling is growing,” Jenkins said. This gap will restrict the creativity to the fringes, rather than push it to the mainstream, which in the long term is the culture that is preserved and maintained.

So what do we do about it?

We could roll with increasing regulations. Lose your Internet connection for file sharing. Take away artists’ rights to terminate recording contracts. We could go even further. Jail someone for singing in the shower, or for merely thinking about a song. (Those supporting the latter have probably heard me play Karaoke Revolution.)

Or we could turn around and march toward a future of digital revolution and cultural anarchy.

Neither extreme is particularly attractive. To say that we would be better off with a more balanced system is not the same as saying that we should abolish copyright altogether, much less that downloading music is a fundamental human right. But culture should not be degraded for a business model.

What if we could imagine a more balanced debate that includes the interests of artists and creators, record companies, civil liberties, digital freedom, and technological development—not just one of them. By looking to and learning from musical history, we can learn how to treat the fundamental components of how music is made.

Jenkins and her co-author and artist, James Boyle and Keith Aoki, expect to release Theft! A History of Music under a Creative Commons license in the spring or summer of 2011.This series was originally written for opensource.com.

Ancient Greeks had their own system of notation as early as the sixth century BC, but it seems to have been used infrequently and fell out of use entirely around the time of the fall of the Roman Empire. Then, other than a few less notable efforts, musical notation wasn’t reinvented for several centuries.

So why did the idea come up again? For sharing—but only a very specific type of sharing. The Holy Roman Empire wanted control and uniformity in their sacred church music. Until then, to ensure the standard form, they would have to send around a choir to disseminate the unified mass and song. Hardly practical. But with notation, the approved (and only the approved) tones, music, and chants could be more quickly spread.

Despite the goal of uniformity, however, the reality was that the invention helped people experiment and innovate, then preserve and transmit music—nearly the opposite of the empire’s intention for control and conformity.

Unfortunately, we’re not much better today at predicting the effects of significantly more advanced technology.

Our generation has a different relationship to musical culture from any other in history. We have the most opportunity for innovation and sharing, but also the most laws preventing it. So when did intellectual property law get its creativity-stifling fingers into music?

In 1710, the Statute of Anne, now seen as the first copyright law, went into effect and gave authors rights for the first time. But it wasn’t applied to music until 1777, when Johann Christian Bach and Karl Friedrich Abel brought a case in which the court found that musical compositions counted as writings that could be covered under the statute. Nevertheless, you still needed permission only for entire works, not fragments, or for performance.

Jenkins pointed out that despite this victory, Bach died penniless, and his creditors tried to sell his body to medical schools. So he won the case, but in the long run, perhaps things could have gone better for him.

Skipping a few centuries again, Jenkins offered more modern examples. “Music has a long and rich history of borrowing across genres and subgenres,” she said. “Take the blues, which draws from a rich commons. Or take rock ‘n roll.”

The law didn’t interfere with those practices, for several reasons. Then things changed when digital sampling came along. Today musicians are told that they must license the tiniest fragments of sound, even though music has fundamentally relied on borrowing throughout history. What was once creation is now regarded as theft.

In 1991 an injunction was granted against Warner Bros. Records and Biz Markie for his sampling of Gilbert O’Sullivan’s “Alone Again (Naturally)” in his own track titled “Alone Again” (Grand Upright Music, Ltd v. Warner Bros. Records Inc.). Jenkins pointed out that the decision quoted the Ten Commandments–”Thou shalt not steal”–but not copyright law.

In “100 Miles and Runnin’,” the group N.W.A. sampled, lowered the pitch of, and looped a two-second guitar chord from Funkadelic’s “Get Off Your Ass and Jam.” Funkadelic sued, and the federal appeals court ruling over the 2005 case, Bridgeport Music, Inc. v. Dimension Films Inc., said, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Quite the opposite is true, though. This ruling eliminated de minimis as it relates to sound recording copyright.

De minimis is the doctrine that means something is too minor, too trivial to care about. When the court was asked how much would count as de minimis, the answer was a single note—maybe. In a footnote, they wrote:

A question arises as to whether the copying of a single note would be actionable. Since that is not the fact situation in this case, we need not provide a definitive answer. We note, however, that under the Copyright Act, the sound recording must “result from the fixation of a series of musical, spoken, or other sounds ….” 17 U.S.C. § 101 (definition of “sound recording”).

“What’s happening?” Jenkins continued. “This level of granularity–licensing two or three notes–IP rights are being applied down to the atomic level of culture. Tiny fragments of music come loaded with demands for payment and copyright protection.”

Despite the assertion that creativity is unaffected, these rulings have changed the music that we create and the way that it sounds.

Will it in any way give us more art, more creativity? Because after all, that’s the purpose of copyright, which is defined in US law as “To promote the Progress of Science and useful Arts.” It doesn’t seem so.

Would jazz, blues, rock, or soul have developed the same way under this legal regime? Probably not.

Jenkins and her co-author and artist, James Boyle and Keith Aoki, expect to release Theft! A History of Music under a Creative Commons license in the spring or summer of 2011. This series was originally written for opensource.com.